German company BASF is facing off against Carpmaels & Ransford at the England and Wales High Court in a billion-euro dispute following the attorney firm’s “admitted negligence” in missing an appeal deadline.
According to written opening submissions seen by Managing IP, Carpmaels’ failure to file an appeal against an EPO revocation decision resulted in BASF missing out on a lucrative monopoly.
In a skeleton argument filed with the court this month, BASF alleged that the total “loss of profits” it suffered was €1.05 billion ($1.2 billion). The trial began on April 16.
“As a matter of obviousness, it depends on the court’s findings as to what precise losses have been suffered,” the claim adds.
The dispute centres on European patent 1665458 (‘458 patent). According to the claim, the patent occupied “vital space” in relation to complying with diesel emission standards.
BASF contends that Carpmaels & Ransford failed to file an appeal in time after the ‘458 patent was revoked by the EPO in 2012.
According to BASF, had the appeal succeeded, the revocation would never have taken effect and the company would have had a valid patent until July 30 2024.
BASF contends that any damages award should account for the fact that it was not able to seek damages from other competitors adjudged to have allegedly infringed the ‘458 patent, and that it lost the opportunity to “cement itself as a market leader at a crucial time for NOx emissions products”.
According to opening submissions filed by Carpmaels, the case is an attempt to blame the firm for BASF’s own business failings. The firm admitted it was responsible for the loss of the appeal, but described the case as a “misguided attempt to blame Carpmaels”.
The firm added: “In fact, the decision of the Opposition Division in relation to the ‘458 patent was plainly correct, and the Technical Board of Appeal would not have overturned the decision.
“The ‘458 patent is a classic example of a party trying to over-reach its attempted scope of monopoly, followed by a series of futile attempts to add in limitations that could not have saved the claims.”
Reed Smith is acting for BASF, while Clyde & Co is representing Carpmaels & Ransford. The case continues.
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